The Human Rights Risks of Countering Violent Extremism Programs

In a new report, UN Special Rapporteur for counterterrorism and human rights Ben Emmerson identifies important concerns about the ways in which Countering Violent Extremism programs violate human rights.

With national and international institutions scrambling to adopt Countering Violent Extremism (CVE) programs, the UN Special Rapporteur for counterterrorism and human rights, Ben Emmerson, has issued a timely report cautioning about the human rights risks of these programs. The Human Rights Council, and especially the chief sponsors of CVE initiatives, should take heed. They should hit the pause button on CVE and develop concrete means for addressing the myriad concerns Emmerson raises. We list some potential ideas for doing so at the end of this piece.

Conceptual Issues

Emmerson’s report begins by identifying two conceptual weaknesses underlying CVE. First, what exactly does “violent extremism” mean and how does it differ from “terrorism”? The report notes that although CVE initiatives are underway, there is no “generally accepted definition of violent extremism,” and the term is often used interchangeably with terrorism. For example, the UN Secretary General’s Plan of Action to Prevent Violent Extremism suggests that violent extremism “encompasses a wider category of manifestations” than terrorism. But the conditions conducive to “violent extremism” that it identifies are “almost identical” to those identified as conducive to “terrorism” identified in the UN’s 2006 Global Counter-terrorism Strategy.

Given that the underlying conditions conducive to both terrorism and violent extremism are virtually the same, it’s hard to see the value-added of the concept of violent extremism. However, the introduction of the new concept carries significant costs, both in terms of human rights and resources, as detailed in Naz Modirzadeh’s post on the Secretary General’s plan over at Lawfare.

The second conceptual challenge relates to our understanding of the so-called “radicalisation process” that forms the basis of many CVE programs:

Many programmes directed at radicalisation are based on a simplistic understanding of the process as a fixed trajectory to violent extremism with identifiable markers along the way. That has sometimes elided factors that are recognised in hindsight as having contributed to an individual’s radicalisation with predictive markers of general application. A more accurate understanding is that the path to radicalisation is individualised and non-linear, with a number of common ‘push’ and ‘pull’ factors but no single determining feature. A confluence of issues at local, national and supranational level may all play a part in promoting or avoiding radicalisation and, when considering influencing factors, States have tended to focus on those that are most appealing to them, shying away from the more complex issues, including political issues such as foreign policy and transnational conflicts.

We agree. One point of clarification though is in order. Often government programs try to get around the lack of predictive markers via checklists of “push” and “pull” factors that identify individuals at risk of violent extremism. While some of these factors may well be useful in conducting a post-facto analysis of a particular individual’s decision to undertake a violent act, they do not provide a basis for predicting who among a population is going to become violent. While some of the factors identified may be relevant (e.g., a significant history of violent behavior), most — such as anxiety, unmet personal needs, frustration — are commonplace in a wide swath of young people and therefore lack utility as a predictive tool.

Human Rights Risks of CVE

The report highlights the risks CVE poses to a wide range of core human rights, including non-discrimination, freedom of expression, and freedom of movement.

Impact of measures that target specific groups or individuals. Emmerson notes that although on paper most CVE strategies are framed in generic terms, in practice they “tend to target specific groups determined to be most ‘at risk’ of being drawn to violent extremism.” As noted in the December 2015 submission to the Special Rapporteur from the ACLU, Article 19, and the Brennan Center, “CVE initiatives in the United States and Europe focus overwhelmingly on Muslim communities, with the discriminatory impact of stigmatizing them as inherently suspicious and in need of special monitoring.”

Emmerson highlights critical questions about programs that aim to “counsel, support and mentor individuals who are considered ‘at risk’ of or ‘vulnerable’ to violent extremism,” including:

The validity of the theory behind intervention programs: i.e., the “misguided” assumption that “there are reliable criteria that can be used to predict who will commit a terrorist act”;

How individuals referred to programs “are identified, what indicators are taken into consideration, and who is qualified to refer”;

The scarcity of independent evaluations of the effectiveness of these programs; and

The lack of transparency about these programs, including how rights to freedom of thought, religion, privacy, and non-discrimination will be respected.

Many of the concerns identified by Emmerson are evident in the UK’s “Prevent” strategy, the most recent version of which imposes a statutory duty on public sector employees, including teachers, doctors, and social workers, to report individuals perceived to be at risk of being drawn into both violent and non-violent extremism. Extremism includes “vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs.” Inevitably, there have been multiple reports of Muslim children being identified as potential radicals for things far removed from terrorism, including a classroom discussion of “ecoterrorism” and expressing support for Palestine. Perhaps the most egregious example was the targeting of a four-year-old whose garbled version of “cucumber” wasmisinterpreted as “cooker bomb.” In light of Prevent’s “real potential for inhibiting people’s human rights,” David Anderson, the UK’s independent reviewer of terrorism legislation, has called for an independent review of the strategy.

Similar programs are also being introduced in the US in the three CVE pilot cities of Boston, Los Angeles and Minneapolis. While details of these programs remain unclear, it appears that — like Prevent — their goal is to enlist teachers and social and mental health workers to monitor and report to law enforcement on children in their care. Leaked National Counterterrorism Center guidelines appear to instruct educators and social workers to monitor and evaluate students on a five-point rating scale according to factors like “perceived sense of being treated unjustly,” “expressions of hopelessness, futility,” and “connection to group identity (race, nationality, religion, ethnicity).” It has recently beenreported that the FBI plans to set up “Shared Responsibility Committees,” modeled on those deployed in the UK under Prevent, to identify American Muslim youth who are potential violent extremists. Earlier this year, the Bureau also rolled out its Don’t Be a Puppet game (reviewed here) which aims to help school children identify extremists in their midst. In Minneapolis, school staff have said they will monitor Somali children to identify “identity issues and disaffection — root causes of radicalization”; similarly, the Boston pilot program has put forth a plan to introduce “multidisciplinary teams” consisting of a social workers, psychiatrists, medical, and school staff to conduct interventions.

Conscripting teachers to hunt for extremists, Emmerson suggests, is not a good idea:

Educators should not be required to act as watchdogs or intelligence officers, nor should they be obliged to act in ways that might impinge the right to education, academic freedom or freedom of expression, thought, religion or belief. Such measures may lead pupils and students to self-censor to avoid being branded ‘extremist’, cause teachers and other staff to view pupils and students as potential threats, or avoid discussing certain issues or inviting guest speakers whose views may be controversial. The lack of certainty about what elements to take into consideration may also lead educators to be overly cautious and needlessly report through fear of sanctions.

He concludes by warning against the “possible counter-productive impact of reporting measures if they lead individuals to avoid open discussions for fear of being branded ‘extremist.’” These very concerns motivated the largest teachers union in the UK to votefor withdrawing the Prevent strategy from schools and colleges.

The last aspect of CVE counseling and outreach programs addressed by Emmerson is the perception among targeted communities that these initiatives are simply intelligence gathering exercises in disguise. While he is careful not to take a view on whether or not this is the case, he concludes “a clear distinction needs to be made between measures to counter violent extremism and the security aspect of countering terrorism.”

Measures that limit expression and ban online content. Emmerson begins by emphasizing that holding or peacefully expressing “extreme” views “should never be criminalised, unless they are associated with violence or criminal activity.” Nonetheless, he recognizes “a dangerous grey zone of expression that lies somewhere between peaceful expression and incitement, and that needs to be addressed” and lists various attempts of governments to respond (e.g., legislation to criminalize “extremist” speech that does not amount to incitement, the creation of offenses such as “advocating,” “inducing,” “encouraging,” or “glorifying” terrorism, as well as lending material support to terrorism). These new offenses, the report notes, impose liability “based on the content of the speech, rather than the speaker’s intention or the actual impact of the speech.” Although Emmerson doesn’t take a clear position on the compatibility of such measures with human rights law, he obviously recognizes the risk that these provisions provide an avenue for governments to suppress speech they don’t like.

Measures adopted by States to “block, filter and ban specific content or entire websites” on the Internet, the report notes, constitute an interference with freedom of expression, as well as the right to privacy. As such, the report concludes, these measures must be authorized by accessible and precise domestic law in pursuit of a legitimate aim, necessary and proportionate, and subject to independent judicial oversight.

Measures that limit the movement of individuals. As part of CVE, some states are considering barring the entry of individuals considered to be “extremist” or of restricting their internal movements. According to the Emmerson, “such measures are particularly problematic where the proscribed conduct is very broadly defined, where the involvement of the judiciary is limited, or where the burden of proof is very low.”

More generally, Emmerson cautions against the securitization of programs for the promotion of development, education, good governance, democracy, and human rights. States are obliged to “respect, protect and promote the rights of all individuals regardless of any broader agenda.” He particularly highlights the safety risks for humanitarian actors for associating with CVE programs as well as the principle that “the provision of humanitarian aid should be based on an identified need and not because a group has been determined to be ‘at risk’ of radicalization.”

This is an important warning. Non-governmental groups working on issues such as peace-building are already starting to reframe their work as part of CVE, no doubt influenced by the availability of funding for such work. This approach carries significant risks, including potential reputational damage once it becomes known that they are working as part of a counterterrorism initiative.

Recommendations

The Special Rapporteur includes several recommendations, which are listed below along with some thoughts as to how they might be implemented:

Increased research to gain a better understanding of the phenomenon of violent extremism. While more knowledge is always a good thing, we would caution against research that assumes that there is a checklist of factors that can be used to predict who will become a terrorist in the future. Based on interviews with prominent counterterrorism researchers, a recent New York Timesarticle concludes: “Despite millions of dollars of government-sponsored research, and a much-publicized White House pledge to find answers, there is still nothing close to a consensus on why someone becomes a terrorist.”

Despite this lack of consensus, US government funding remains focused on finding a silver bullet for violent extremism. We recommend that researchers should be given greater freedom to critically examine the underlying premises of government CVE programming and also to evaluate factors that are politically inconvenient for governments, such as the impact of state violence, both domestic and foreign.

Finally, there is no point doing good research if governments simply ignore it. Credible empirical studies amply demonstrate that there are no predictive markers of who is likely to become a terrorist. CVE strategies acknowledge this fact, but at the same time promote programs that rely on such markers.

States should focus their CVE efforts on tackling the conditions conducive to the threat of terrorism (e.g., unresolved conflict, bad governance) and ensuring respect for human rights. This is an obviously sensible recommendation, but must be read in conjunction with Emmerson’s strong caution about the securitization of these endeavors. Specifically, States must fulfill their human rights obligations “without framing this obligation as part of any broader agenda, including the prevention and countering of violent extremism.”

Emmerson makes an important additional recommendation relevant to programs that mix a security agenda with non-security programs, such as peace-building, development, etc. First, “before embarking on a new area of engagement for CVE, a proper analysis of the impact on all those involved as providers or recipients must be undertaken.” This type of impact analysis should, in our view, be part of the program design and evaluation process, and should cover the impact of a security framing on the underlying goal of the program, including any potential reputational consequences and the risk of diversion from primary objectives. It should apply to national and international programs, including those conducted by NGOs with government funding. Ideally, an independent and credible third party with experience in the substantive area of programming and the relevant region should conduct the analysis. In addition, the UN and its member states should develop robust procedures to ensure that development or human rights programs do not become proxies for security aims.

All strategies and policies adopted by States to counter violent extremism must be firmly grounded in and comply with international human rights law. This admonition is found in practically every UN document on CVE and serves as a basis on which to build human rights protections into these programs. Unfortunately, there are few concrete examples of how this obligation is implemented. NGOs asked this question of the US government in December 2014 and have yet to receive a response. It is not enough for governments to simply state that they will respect human rights (or civil rights and liberties); they need to be transparent about what they are doing and explain how they will specifically address the concerns highlighted by the Special Rapporteur relating to non-discrimination, freedom of expression, and freedom of movement.

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In sum, the critical issues raised by Special Rapporteur’s report must be concretely addressed, and his entirely sensible recommendations should serve as a blueprint for developing substantive safeguards.

(Photo: Thinkstock)

Amrit Singh is Senior Legal Officer for National Security and Counterterrorism at the Open Society Justice Initiative.